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OpenMarket: May 2008

As Congressional energy bills make energy (and transportation) progressively more expensive, it's worth recalling that it was cars (and carpooling) that made Martin Luther King's Montgomery bus boycott viable. For many black people in Montgomery, that was the only transportation alternative to the segregated buses that demeaned them. Technological and economic progress was key to breaking down entrenched segregation in the Deep South.

Last week, I discovered a bizarre requirement for a fingerprint registrty in housing legislation that had just passed the Senate Banking Committee. In an OpenMarket post last Friday, I wrote that the provison had "almost escape[d] without notice."

I am now heartened to write that the database provision has now generated plenty of notice and interest. OpenMarket has gotten over 100,000 hits on this post, and, at last count, 375 concerned readers have posted comments. The post was linked to by the Drudge Report and by Reason magazine's popular blog, "Hit & Run." Also, over at CNET News, savvy tech writer Declan McCullagh dug up some interesting new info on the fingerprint provison in his own story.

The article struck a chord about lost privacy and lost liberties. The legislative origins of the fingerprint provision remain somewhat of a mystery, though McCullagh's CNET story traced much of the language back to an earlier stand-alone bill co-sponsored by 11 Senate Democrats and two Republicans. I have still not been able to find any debate or justification for it, but it seems now that fingerprint requirements are a simplistic way for polticians to argue that they are getting tough about a particular problem, even if it's questionable how much fingerprinting will contibute to solving the problem.

Some commenters were right to note that this is an issue concerning federalism as well as privacy. Through the CNET story, comments on the blog, and e-mails I have received, I learned about other state fingerprint registries of questionable justification for various professions. According to CNET, four states require "mortgage brokers" to be fingerprinted.

Contrary to popular belief, regulators tend to be very clever people. They know the rules of the game, and they know to how to use them to their advantage.

The latest example of bureaucratic perfidy is a recent decision by EU officials to raise tariffs on some high-tech goods from the United States. This doesn't seem like a smart policy at first glance. It will make goods more expensive for European consumers. The tariffs might also be a violation of the Information Technology Agreement. The U.S. is not pleased, and is launching a WTO case.

There are two ingenious ways that revenue-hungry EU regulators are gaming the system.

One is taking advantage of how bureaucratized the WTO is. The current dispute is only in the first step right now, which is a formal consultation between the WTO and the EU. I believe the next step involves a strongly worded letter.

The EU regulators who imposed the tariffs know that the case will take years to decide. Their tariffs — and revenues — will stand untouched until then. They know they can violate free trade agreements almost at will, and years will pass before they'll have to answer for it. Very clever.

The second spark of regulatory intelligence is a creative interpretation of the Information Technology Agreement (ITA). Under the agreement, computer monitors are duty-free, but televisions are not. So the EU is arguing that people are using larger computer monitors primarily as televisions, and not as computer monitors. That way they can be taxed.

Of course, only the people actually buying and using large computer monitors can say what they're using them for. But the regulators have made a good enough argument to stall the WTO.

Some civil rights laws not only ban discrimination, but also retaliation against those who complain about what they perceive to be discrimination. Others just ban discrimination, and say nothing about retaliation.

In two cases it decided on Tuesday, the Supreme Court ruled that civil-rights laws don't even need to mention retaliation to ban it, since retaliation is a kind of discrimination. That's factually untrue -- for example, an employer doesn't have to be a racist to resent an employee who erroneously accuses her of racial discrimination -- and the court's ruling begs the question of why some civil rights laws expressly ban retaliation, not just discrimination. Why did the legislators who wrote those laws bother to separately ban both retaliation and discrimination if retaliation is just a kind of discrimination?

Congress knows how to ban retaliation when it wants to. Title VII of the Civil Rights Act of 1964, which covers employers with more than 15 employees, expressly bans both discrimination and retaliation. But other laws, such as 42 U.S.C. 1981, which bans racial discrimination and anti-alien discrimination by even the smallest employers or service providers (including your kid's lemonade stand), have language that only bans discrimination, not retaliation.

Texas Child Protective Services (CPS) illegally seized 465 children from parents in a religious sect based on an anonymous, fabricated allegation by a woman outside the sect pretending to be a member. The state appeals court recently ruled against the seizure of many of those children.

As Jacob Sullum notes, while CPS justified its actions by citing the sect's "pervasive belief system" (which favors early marriage and approves of polygamy), it seized even the children of adult, monogamous married couples, and even some adults mistakenly branded as minors. Even by "the state's current count, underage mothers represent no more than 3 percent of the children it seized."